As of 15 March 2018, does at least one management board member have to have a PESEL number?
Concerns about amendment to the National Court Register Act
The Act of 26 January 2018 Amending the National Court Register Act and Certain Other Acts provides for a range of changes to how the register functions. One of the principal changes is a switch to proceedings in electronic form (it is compulsory to make filings in the register in electronic, and not paper form), while at the same time an obligation has been introduced to draw up financial statements in electronic form. The act provides that particular changes will be implemented in phases, with the overall process being completed by 1 March 2020 (the most important changes are discussed here).
On 15 March 2018, meanwhile, amendments came into force which could give rise to major practical problems. Under the new wording of Art. 19e of the National Court Register Act, annual financial statements and resolutions approving the financial statements and distribution of profit or covering of losses, for instance, are to be filed using the ICT system provided by the Minister of Justice for that purpose. The provision also requires that filings be made with a qualified electronic signature or signature confirmed in the e-government system ePUAP by at least one natural person registered on the basis of a PESEL number in the National Court Register as a management board member, member of a partnership, receiver, or liquidator.
Understood literally, this provision states that it will not be possible for a company to make a filing if there are no persons on the management board who have a PESEL number or are eligible to obtain a PESEL number.
As filing the documents specified in Art. 69 of the Accounting Act is a corporate obligation, and compliance with this obligation requires action on the part of a management board member who has a PESEL number (and is listed in the National Court Register), the question arises whether Art. 19e(2) of the National Court Register Act modifies the rule provided in Art. 18 §1 of the Commercial Companies Code. Is there a requirement that as of 15 March 2018 at least one member of the management board of a company has to have been assigned a PESEL number?
Three issues need to be considered in order to answer this question.
The first is the nature of the new legislation. According to the statement of reasons for the bill, this legislation is a “technical” provision and only specifies how documents should be filed with the registry court. From this point of view, it is difficult to conclude that Art. 19e(2) of the National Court Register Act takes precedence over Art. 18 §1 of the Commercial Companies Code.
The second is the purpose of the legislation. In this regard, the context in which this provision arose should be considered. This occurred during legislative work by a Sejm subcommittee, where the only reasoning given for inserting this text was to clarify that the person making the filing has to be a natural person.
The third is that the adoption of a general rule that at least one management board member has to have a PESEL number (which is issued to Polish citizens and only issued to foreigners in cases stipulated by law) might be a subjective (unjustified) differentiation of rights of citizens of EU member states, which is prohibited under Art. 49 of the Treaty on the Functioning of the European Union.
An indirect argument that Art. 19e(2) of the National Court Register Act does not take precedence over Art. 18 §1 of the Commercial Companies Code can be found in Art. 19e(7) of the National Court Register Act, which provides for automatic review of filings. If they don’t pass this review, the applicant can file the required documents via the ICT system with a request for entry to be made in the register or for acceptance of the documents, and at this point the act does not require that the request be filed by a person who has a PESEL number.
Another unclear aspect is whether a person who does not have a PESEL number can make a filing at all under Art. 19e(2) of the National Court Register Act, or this is prevented by the system. It would seem that this question will be answered once the ICT system becomes available.
This in turn seems to be definitive confirmation that Art. 19e(2) of the National Court Register Act cannot be deemed to modify the rule stated in Art. 18 §1 of the Commercial Companies Code. Whether a person who does not have a PESEL number can make a filing is determined in practice by the structure of the ICT system created under secondary legislation that has not been enacted yet. If that management board member (or liquidator or receiver) is unable to make the filing described in Art. 69 of the Accounting Act via that system, then under the rule of precedence of higher-ranking legislation the secondary legislation would be contrary to Art. 18 §1 of the Commercial Companies Code.
Even though the overall goal of the new act is reasonable, both this issue and the requirements for signing documents electronically need to be analysed further, and appropriate caution must be exercised. The practice that emerges when the act is applied, including the case law where the act cannot be followed to the letter, will be a major factor.
Izabela Zielińska-Barłożek, legal adviser, Maciej Szewczyk, legal adviser, M&A and Corporate Practice, Wardyński & Partners